Wallway v. Doe

United States District Court, D. Montana, Missoula Division

June 21, 2017

RANDY RAYMOND WALLWAY, Plaintiff,v.JOHN DOE, MHP OFFICER, Defendant.

ORDER

JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE.

Plaintiff
Randy Wallway, appearing pro se, filed an application
requesting leave to proceed in forma pauperis. He submitted a
declaration that makes the showing required by 28 U.S.C.
§ 1915(a). Because it appears he lacks sufficient funds
to prosecute this action IT IS HEREBY ORDERED that
Wallway's application to proceed in forma pauperis is
GRANTED. This action may proceed without prepayment of the
filing fee, and the Clerk of Court is directed to file
Wallway's lodged Complaint as of the filing date of his
request to proceed in forma pauperis.

The
federal statute under which leave to proceed in forma
pauperis is permitted - 28 U.S.C. § 1915 - also requires
the Court to conduct a preliminary screening of the
allegations set forth in the litigant's pleading. The
applicable provisions of section 1915(e)(2) state as follows:

(2) Notwithstanding any filing fee, or any portion thereof,
that may have been paid, the court shall dismiss the case at
any time if the court determines that-

(A) the allegation of poverty is untrue; or

(B) the action or appeal-

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted;
or (iii) seeks monetary relief against a defendant who is
immune from such relief.

28 U.S.C. § 1915(e)(2).

The
Court has reviewed Wallway's pleading to consider whether
this action can survive dismissal under the provisions of
section 1915(e)(2), or any other provision of law. See
Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1138, 1142 (9
Cir. 2005). The Court finds that at this stage of the
proceedings Wallway's allegations at least state a claim
upon which relief could be granted under 42 U.S.C. §
1983. Wallway alleges Defendant John Doe Montana Highway
Patrol Officer arrested Wallway and physically assaulted him
while he was in handcuffs. Therefore, the Court will order
Wallway's complaint be served on Defendant.

Because
Wallway is proceeding in forma pauperis, he is entitled to
have his complaint and summons served by the United States
Marshal. Fed.R.Civ.P. 4(c)(3). Nonetheless, Wallway is
obligated to provide the Court with an appropriate address
for service on the Defendant. See Pullano v. Clark Co.
Detention Ctr., 2010 WL 4272871, *2 (D. Nev. 2010).

More
importantly though, because Wallway has identified the
Defendant as an unknown John Doe, he must first undertake to
discover John Doe's actual identity. Ordinarily, a party
may not seek discovery from any source until after the
parties confer regarding discovery as required by
Fed.R.Civ.P. 26(f). Fed.R.Civ.P. 26(d)(1). But situations
arise where a plaintiff does not know the identity of a
defendant or defendants prior to filing a complaint.
Therefore, “the plaintiff should be given an
opportunity through discovery to identify the unknown
defendants, unless it is clear that discovery would not
uncover the identities, or that the complaint would be
dismissed on other grounds.” Gillespie v.
Civiletti, 629 F.2d 637, 642 (9th Cir. 1980).
Thus, the courts have discretion, for good cause and in the
interests of justice, to allow a party to conduct premature
discovery for the limited purpose of ascertaining the
identity of an unknown defendant. Evans v. Unknown Names
of Department of Corrections Officers, 2007 WL 30597, *2
(N.D. Cal. 2007).

In
evaluating whether good cause exists to allow a plaintiff to
conduct early discovery to learn the identity of a John Doe
defendant, a court should consider whether the plaintiff:
“(1) identifies the defendant with sufficient
specificity that the court can determine that the defendant
is a real person who can be sued in federal court, (2)
recounts the steps taken to locate and identify the
defendant, (3) demonstrates that the action can withstand a
motion to dismiss, and (4) proves that the discovery is
likely to lead to identifying information that will permit
service of process.” Burns v. City of Concord,
2014 WL 892082, *1 (N.D. Cal. 2014). “Good cause may be
found where the need for expedited discovery, in
consideration of the administration of justice, outweighs the
prejudice to the responding party.” Evans, at
*2 (quoting Semitool, Inc. v. Tokyo Electron America,
Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002)).

Wallway's
allegations are sufficient to establish good cause to allow
him to conduct early discovery. He states a Montana Highway
Patrol officer assaulted him on May 23, 2014, around 6:00
p.m. Thus it is plausible the John Doe defendant is a real
person who could be identified by the Montana Highway
Patrol's records, and is an individual who could be sued.
And the allegations at least state a claim that the officer
potentially used excessive force against Wallway in violation
of his rights secured by the Fourth Amendment of the United
States Constitution. Although Wallway has not provided any
information as to any efforts he may have made to identify
the officer who allegedly assaulted him, the Court finds that
in the interests of justice it is more efficient to permit
Wallway to conduct limited discovery through the Montana
Highway Patrol with relatively little burden and prejudice
potentially imposed ...

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